Monday, February 29, 2016

THERE ARE about seven million senior citizens in the country and if you include adult members of their families and close relatives, this figure easily comes up to at least 14 million voting citizens. They may not vote as a solid block but through word of mouth in their respective communities, they can influence others one way or another particularly when it comes to local issues.

* * *

Three months ago, senior citizen Oscar Lagman, wrote to complain about a business establishment in Mandaluyong City.

Briefly, Lagman had been buying an anti-inflammatory corticosteroid for his use from various Generics Pharmacy outlets since 2008. However, when he tried to purchase the same from Generics Pharmacy Qualigen, located at Star Mall Edsa corner Shaw Boulevard, he was informed that company policy did not allow senior citizen discounts for the product he wished to purchase.

Refusal by the outlet to honor his senior citizen status prompted Lagman to e-mail a complaint to Delfin Asistio, coordinator of the Office of Senior Citizens Affairs (Osca) of Mandaluyong City and to Social Welfare Secretary Dinky Soliman.

He received no response from them.

However, after I wrote about his experience, he received an e-mail reply from Secretary Soliman saying that “Osca of LGU (Mandaluyong City) and the concerned drugstore had been advised of the validity of my complaint and that the Senior Citizen Secretariat of the National Coordinating and Monitoring Board (NCMB) had been informed of the communication to Osca and the drugstore.”

Nilo Villaruz of Osca Mandaluyong City called up Lagman to ask for the details of his complaint. Apparently no one in his office had read Lagman’s letter-complaint.

After being asked by Lagman what action had been taken on the matter, Villaruz replied that their Business Permit Office had sent a communication to the drugstore concerned. When Lagman asked about any results in connection with the communication, no reply was received.

Three things are clear: first, Secretary Soliman considers Lagman’s complaint valid and informed Osca Mandaluyong City and Generics Pharmacy Qualigen of their position; second, Osca Mandaluyong City by inaction failed to uphold the law; and third, the NCMB failed to take any action on the matter. It probably ended up as a statistic in their office.

It has been three months since the complaint of Lagman was sent to the government offices concerned. He has not heard from them since the initial reaction when I wrote about the matter. Generics Pharmacy Qualigen continues to operate even as it refuses to honor the senior citizens law. Unfortunately, for the great majority of our people, the experience of Lagman is typical of the bureaucracy and is more the rule rather than the exception. We have so many laws, but proper implementation and enforcement is either poor or nonexistent.

It is basically the local government unit, in this case Mandaluyong City, headed by Mayor Benhur Abalos, that is responsible for enforcement. If the city executives do not do their duty or fail to carry out their responsibilities, the senior citizen suffers.

What should senior citizens do?

We shall be electing our officials, local and national, come May. Let us use our vote wisely. This is perhaps the only occasion when we can hold our officials accountable for what they have done or what they have failed to do.

DO NOT VOTE for officials who ignore complaints from their constituents.

DO NOT VOTE for officials who pay lip service to the needs and concerns of their constituents and become deaf and dumb once in office.

VOTE for change if one is not satisfied with the performance of incumbents.

What is also needed is an example. We need to see business establishments being penalized for violations of the senior citizens law. Lack of punishment for offenders only perpetuates a climate of impunity. Fear of retribution is the best deterrent against any form of criminal activity.

* * *

What else can be done for the benefit of our senior citizens as well as for persons with disabilities (PWDs)?

In Congress, we have a party-list group with the acronym “Senior Citizens.” Their objective is to assist senior citizens in the enjoyment of their rights and benefits under the law. They are supposed to serve as the voice of the senior citizen sector in Congress. One of their more important functions is to sponsor and implement projects geared toward the enhancement of the general welfare of senior citizens.

What have they accomplished so far?

Not much, since they have been quarrelling among themselves for some time now. In fact, a number of representatives have been facing charges of corruption.

But if they have the time and the inclination to do some work on behalf of their constituents, let me provide some ideas for them to chew on.

• In Brazil a law requires that all private business and government facilities provide immediate and “differentiated” attention to people aged 60 and over. To comply with the law, many establishments have set up exclusive service windows known as “preferential lines” to attend to senior citizens and PWDs. The Brazilian Constitution says the government must defend the “dignity” of the elderly and provide them with free public transportation.

The city of Fortaleza in the Brazilian state of Ceara goes even further. It passed an ordinance in 2014 allowing seniors and PWDs to cut to the front of any line or queue. Since the law went into effect complaints have produced 114 fines totaling some $20,000.

• Instead of an Osca, what is needed is a “Senior Citizen Advocacy Agency” that will address in a speedy manner all complaints of senior citizens and PWDs. It is safe to say that Osca in its present form does not satisfy the needs and concerns of senior citizens. There are better ways of addressing the problem. It only requires sincerity, initiative and determination, particularly on the part of local executives, to bring about badly needed improvements in the implementation of the senior citizens law.

On the landholding issue, J.G. Summit submits that since PHILSECO is a
landholding company, KAWASAKI could exercise its right of first refusal only up
to 40% of the shares of PHILSECO due to the constitutional prohibition on
landholding by corporations with more than 40% foreign-owned equity. It further
argues that since KAWASAKI already held at least 40% equity in PHILSECO, the
right of first refusal was inutile and as such, could not subsequently be
converted into the right to top. 37 Petitioner also asserts that, at
present, PHILSECO continues to violate the constitutional provision on
landholdings as its shares are more than 40% foreign-owned.38 PHILYARDS admits that it may have
previously held land but had already divested such landholdings.39 It contends, however, that even if
PHILSECO owned land, this would not affect the right of first refusal but only
the exercise thereof. If the land is retained, the right of first refusal,
being a property right, could be assigned to a qualified party. In the
alternative, the land could be divested before the exercise of the right of
first refusal. In the case at bar, respondents assert that since the right of
first refusal was validly converted into a right to top, which was exercised
not by KAWASAKI, but by PHILYARDS which is a Filipino corporation (i.e., 60% of
its shares are owned by Filipinos), then there is no violation of the
Constitution.40 At first, it would seem that questions
of fact beyond cognizance by this Court were involved in the issue. However,
the records show that PHILYARDS admits it had owned land up until the
time of the bidding.41Hence, the only issue is whether
KAWASAKI had a valid right of first refusal over PHILSECO shares under the JVA
considering that PHILSECO owned land until the time of the bidding and KAWASAKI
already held 40% of PHILSECO’s equity.

We uphold the validity of the mutual rights of first refusal
under the JVA between KAWASAKI and NIDC. First of all, the right of first
refusal is a property right of PHILSECO shareholders, KAWASAKI and NIDC, under
the terms of their JVA. This right allows them to purchase the shares of their
co-shareholder before they are offered to a third party. The agreement
of co-shareholders to mutually grant this right to each other, by itself, does
not constitute a violation of the provisions of the Constitution limiting land
ownership to Filipinos and Filipino corporations. As PHILYARDS correctly
puts it, if PHILSECO still owns land, the right of first refusal can be validly
assigned to a qualified Filipino entity in order to maintain the 60%-40% ratio.
This transfer, by itself, does not amount to a violation of the Anti-Dummy
Laws, absent proof of any fraudulent intent. The transfer could be made either
to a nominee or such other party which the holder of the right of first refusal
feels it can comfortably do business with. Alternatively, PHILSECO may divest of
its landholdings, in which case KAWASAKI, in exercising its right of first
refusal, can exceed 40% of PHILSECO’s equity. In fact, it can even be
said that if the foreign shareholdings of a landholding corporation exceeds
40%, it is not the foreign stockholders’ ownership of the shares which is
adversely affected but the capacity of the corporation to own land –
that is, the corporation becomes disqualified to own land. This finds support
under the basic corporate law principle that the corporation and its
stockholders are separate juridical entities. In this vein, the right of first
refusal over shares pertains to the shareholders whereas the capacity to own
land pertains to the corporation. Hence, the fact that PHILSECO owns land
cannot deprive stockholders of their right of first refusal. No law
disqualifies a person from purchasing shares in a landholding corporation even
if the latter will exceed the allowed foreign equity, what the law disqualifies
is the corporation from owning land. This is the clear import of the
following provisions in the Constitution:

Section 2. All lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be under
the full control and supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations
or associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.

xxx xxx xxx

Section 7. Save in cases of
hereditary succession, no private lands shall be transferred or
conveyed except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain.42(emphases supplied)

The petitioner further argues that "an option to buy
land is void in itself (Philippine Banking Corporation v. Lui She, 21 SCRA 52
[1967]). The right of first refusal granted to KAWASAKI, a Japanese
corporation, is similarly void. Hence, the right to top, sourced from the right
of first refusal, is also void."43 Contrary to the contention of
petitioner, the case of Lui She did not that say "an
option to buy land is void in itself," for we ruled as follows:

x x x To be sure, a lease to an
alien for a reasonable period is valid. So is an option giving an alien
the right to buy real property on condition that he is granted
Philippine citizenship. As this Court said in Krivenko vs. Register of Deeds:

[A]liens are not completely
excluded by the Constitution from the use of lands for residential purposes.
Since their residence in the Philippines is temporary, they may be granted
temporary rights such as a lease contract which is not forbidden by the Constitution.
Should they desire to remain here forever and share our fortunes and
misfortunes, Filipino citizenship is not impossible to acquire.

But if an alien is given not
only a lease of, but also an option to buy, a piece of land, by virtue of which
the Filipino owner cannot sell or otherwise dispose of his property, this to
last for 50 years, then it becomes clear that the arrangement is a virtual
transfer of ownership whereby the owner divests himself in stages not only of
the right to enjoy the land (jus possidendi, jus utendi, jus fruendi
and jus abutendi) but also of the right to dispose of it (jus disponendi)
— rights the sum total of which make up ownership. It is just as if today the
possession is transferred, tomorrow, the use, the next day, the disposition,
and so on, until ultimately all the rights of which ownership is made
up are consolidated in an alien. And yet this is just exactly what the parties
in this case did within this pace of one year, with the result that Justina
Santos'[s] ownership of her property was reduced to a hollow concept. If this
can be done, then the Constitutional ban against alien landholding in the
Philippines, as announced in Krivenko vs. Register of Deeds, is
indeed in grave peril.44 (emphases supplied; Citations
omitted)

In Lui She, the option to buy was invalidated
because it amounted to a virtual transfer of ownership as the owner could not
sell or dispose of his properties. The contract in Lui She prohibited
the owner of the land from selling, donating, mortgaging, or encumbering the
property during the 50-year period of the option to buy. This is not so in the
case at bar where the mutual right of first refusal in favor of NIDC and
KAWASAKI does not amount to a virtual transfer of land to a non-Filipino. In
fact, the case at bar involves a right of first refusal over shares of
stock while the Lui She case involves an option
to buy the land itself. As discussed earlier, there is a distinction
between the shareholder’s ownership of shares and the corporation’s ownership
of land arising from the separate juridical personalities of the corporation
and its shareholders.

We note that in its Motion for Reconsideration, J.G. Summit
alleges that PHILSECO continues to violate the Constitution as its foreign
equity is above 40% and yet owns long-term leasehold rights which are
real rights.45It cites Article 415 of the Civil Code which
includes in the definition of immovable property, "contracts for public
works, and servitudes and other real rights over immovable property."46 Any existing landholding, however, is
denied by PHILYARDS citing its recent financial statements.47 First, these are questions of fact, the
veracity of which would require introduction of evidence. The Court needs to
validate these factual allegations based on competent and reliable evidence. As
such, the Court cannot resolve the questions they pose. X x x.

X x x.

As correctly observed by the public respondents, the
prohibition in the Constitution applies only to ownership of land.48It does not extend to immovable or
real property as defined under Article 415 of the Civil Code. Otherwise, we
would have a strange situation where the ownership of immovable property such
as trees, plants and growing fruit attached to the land49 would be limited to Filipinos and
Filipino corporations only.

Coming now to the issue of ownership of the properties
erected on the subject lot, the Court agrees with the finding of the trial
court, as affirmed by the appellate court, that the series of transactions
resorted to by the deceased were simulated in order to preserve the properties
in the hands of the family. The records show that during all the time that
the properties were allegedly sold to the spouses Victoria Cabasal and Gregorio
Fontela in 1958 and the subsequent sale of the same to respondent in 1961, the
petitioners and respondent, along with their parents, remained in possession
and continued to live in said properties.

However, the trial court concluded that:

In fairness to the defendant, although the Deeds of Sale
executed by Felix Ting Ho regarding the improvements in favor of Victoria
Cabasal and Gregorio Fontela and the subsequent transfer of the same by
Gregorio Fontela and Victoria Cabasal to the defendant are all simulated, yet, pursuant
to Article 1471 of the New Civil Code it can be assumed that the intention of
Felix Ting Ho in such transaction was to give and donate the improvements to
his eldest son the defendant Vicente Teng Gui[20]

Its finding was based on Article 1471 of the Civil Code,
which provides that:

Art. 1471. If the price is simulated, the sale is void, but the
act may be shown to have been in reality a donation, or some other act or
contract.[21]

The Court holds that the reliance of the trial court on the
provisions of Article 1471 of the Civil Code to conclude that the simulated
sales were a valid donation to the respondent is misplaced because its finding
was based on a mere assumption when the law requires positive
proof.

The respondent was unable to show, and the records are
bereft of any evidence, that the simulated sales of the properties were
intended by the deceased to be a donation to him. Thus, the Court holds
that the two-storey residential house, two-storey residential building and
sari-sari store form part of the estate of the late spouses Felix Ting Ho and
Leonila Cabasal, entitling the petitioners to a four-fifths (4/5) share
thereof.

[17] This
rule does not apply where the land covered by a patent issued by the Government
had previously been determined in a registration proceeding and adjudicated in
favor of a private individual other than the patentee, which situation is not
present in this case.

Nonetheless, petitioners invoke equity considerations and
claim that the ruling of the RTC that an implied trust was created
between respondent and their father with respect to the subject lot should be
upheld.

This contention must fail because the prohibition against an alien from owning lands of the public domain
is absolute and not even an implied trust can be permitted to arise on equity
considerations.

In the case of Muller v. Muller,[18] wherein
the respondent, a German national, was seeking reimbursement of funds claimed
by him to be given in trust to his petitioner wife, a Philippine citizen, for
the purchase of a property in Antipolo, the Court, in rejecting the claim,
ruled that:

Respondent was aware of the
constitutional prohibition and expressly admitted his knowledge thereof to this
Court. He declared that he had the Antipolo property titled in the name of
the petitioner because of the said prohibition. His attempt at
subsequently asserting or claiming a right on the said property cannot be
sustained.

The Court of Appeals erred in
holding that an implied trust was created and resulted by operation of law in
view of petitioner's marriage to respondent. Save for the exception provided in
cases of hereditary succession, respondent's disqualification from owning lands
in the Philippines is absolute. Not even an ownership in trust is
allowed. Besides, where the purchase is made in violation of an
existing statute and in evasion of its express provision, no trust can result
in favor of the party who is guilty of the fraud. To hold otherwise would allow
circumvention of the constitutional prohibition.

Invoking the principle that a
court is not only a court of law but also a court of equity, is likewise
misplaced. It has been held that equity as a rule will follow the law and will
not permit that to be done indirectly which, because of public policy, cannot
be done directly...[19]

Registration of
grants and patents involving public lands is governed bySection
122 of Act No. 496, which was subsequently amended by Section 103 of Presidential Decree No. 1529, viz:

Sec. 103. Certificate of
title pursuant to patents.Whenever public land is by the Government
alienated, granted or conveyed to any person, the same shall be brought
forthwith under the operation of this Decree.It shall be the duty of the
official issuing the instrument of alienation, grant, patent or conveyance in
behalf of the Government to cause such instrument to be filed with the Register
of Deeds of the province or city where the land lies, and to be there
registered like other deeds and conveyance, whereupon a certificate of title
shall be entered as in other cases of registered land, and an owners duplicate
issued to the grantee. The deeds, grant, patent or instrument of
conveyance from the Government to the grantee shall not take effect as a
conveyance or bind the land, but shall operate only as a contract between the
Government and the grantee and as evidence of authority to the Register of
Deeds to make registration. It is the act of registration that shall be
the operative act to affect and convey the land, and in all cases under this
Decree registration shall be made in the office of the Register of Deeds of the
province or city where the land lies. The fees for registration shall be
paid by the grantee. After due registration and issuance of the
certificate of title, such land shall be deemed to be registered land to all
intents and purposes under this Decree.[16](Emphasis
supplied)

Under the law, a certificate of title issued pursuant to any
grant or patent involving public land is as conclusive and indefeasible as any
other certificate of title issued to private lands in the ordinary or cadastral
registration proceeding. The effect of the registration of a patent and
the issuance of a certificate of title to the patentee is to vest in him an
incontestable title to the land, in the same manner as if ownership had been
determined by final decree of the court, and the title so issued is absolutely
conclusive and indisputable, and is not subject to collateral attack.[17]

Section 1. All
agricultural timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential
energy and other natural resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines or
to corporations or associations at least sixty per centum of the capital of
which is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of the Government
established under this Constitution (Emphasis supplied)

Our fundamental law cannot be any clearer. The right to
acquire lands of the public domain is reserved for Filipino citizens or
corporations at least sixty percent of the capital of which is owned by
Filipinos. Thus, in Krivenko v. Register of Deeds,[14]the
Court enunciated that:

Perhaps the effect of our
construction is to preclude aliens, admitted freely into the Philippines from
owning sites where they may build their homes. But if this is the solemn
mandate of the Constitution, we will not attempt to compromise it even in the
name of amity or equity. We are satisfied, however, that aliens are
not completely excluded by the Constitution from the use of lands for
residential purposes. Since their residence in the Philippines is
temporary, they may be granted temporary rights such as a lease contract which
is not forbidden by the Constitution. Should they desire to remain here forever
and share our fortunes and misfortunes, Filipino citizenship is not impossible
to acquire.[15]

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that there are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the one-third usufruct over the estate given to the widow Marcelle However, this question has become moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or stated differently because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or transmission. The Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be only one tranmission or substitution, and the substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman, however, construe the word "degree" as generation, and the present Code has obviously followed this interpretation. by providing that the substitution shall not go beyond one degree "from the heir originally instituted." The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only relatives who are one generation or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

The appellant's do not question the legality of giving
Marcelle one-half of the estate in full ownership. They admit that the
testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the
only survivor is the widow or widower, she or he shall be entitled to one-half
of the hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he could impose
no burden, encumbrance, condition or substitution of any kind whatsoever. (Art.
904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the
appellants question and justifiably so. It appears that the court a quo approved
the usufruct in favor of Marcelle because the testament provides for a usufruct
in her favor of one-third of the estate. The court a quo erred
for Marcelle who is entitled to one-half of the estate "en pleno
dominio" as her legitime and which is more than what she is given under
the will is not entitled to have any additional share in the estate. To give
Marcelle more than her legitime will run counter to the testator's intention
for as stated above his dispositions even impaired her legitime and tended to
favor Wanda.

PHILIPPINE BANKING CORPORATION, representing the estate
of JUSTINA SANTOS Y CANON FAUSTINO, deceased vs. LUI SHE in her own behalf and as administratrix of the intestate estate
of Wong Heng, deceased,G.R. No. L-17587, September 12, 1967

“x x x.

It is next contended that the lease contract was obtained by
Wong in violation of his fiduciary relationship with Justina Santos, contrary
to article 1646, in relation to article 1941 of the Civil Code, which
disqualifies "agents (from leasing) the property whose administration or
sale may have been entrusted to them." But Wong was never an agent of Justina
Santos. The relationship of the parties, although admittedly close and
confidential, did not amount to an agency so as to bring the case within the
prohibition of the law.

X x x.

Taken singly, the contracts show nothing that is necessarily
illegal, but considered collectively, they reveal an insidious pattern to
subvert by indirection what the Constitution directly prohibits. To be sure, a
lease to an alien for a reasonable period is valid. So is an option giving an
alien the right to buy real property on condition that he is granted Philippine
citizenship. As this Court said in Krivenko v. Register of Deeds:20

[A]liens are not completely
excluded by the Constitution from the use of lands for residential purposes.
Since their residence in the Philippines is temporary, they may be granted temporary
rights such as a lease contract which is not forbidden by the Constitution.
Should they desire to remain here forever and share our fortunes and
misfortunes, Filipino citizenship is not impossible to acquire.

But if an alien is given not only a lease of, but also an
option to buy, a piece of land, by virtue of which the Filipino owner cannot
sell or otherwise dispose of his property,21 this to last for
50 years, then it becomes clear that the arrangement is a virtual transfer of
ownership whereby the owner divests himself in stages not only of the right to
enjoy the land ( jus possidendi, jus utendi, jus fruendi and jus
abutendi) but also of the right to dispose of it ( jus disponendi)
— rights the sum total of which make up ownership. It is just as if today the
possession is transferred, tomorrow, the use, the next day, the disposition,
and so on, until ultimately all the rights of which ownership is made up are
consolidated in an alien. And yet this is just exactly what the parties in this
case did within the space of one year, with the result that Justina Santos'
ownership of her property was reduced to a hollow concept. If this can be done,
then the Constitutional ban against alien landholding in the Philippines, as
announced in Krivenko v. Register of Deeds,22 is
indeed in grave peril.

It does not follow from what has been said, however, that
because the parties are in pari delicto they will be left
where they are, without relief. For one thing, the original parties who were
guilty of a violation of the fundamental charter have died and have since been
substituted by their administrators to whom it would be unjust to impute their
guilt.23 For another thing, and this is not only cogent but
also important, article 1416 of the Civil Code provides, as an exception to the
rule on pari delicto, that "When the agreement is not illegal per
se but is merely prohibited, and the prohibition by law is designed
for the protection of the plaintiff, he may, if public policy is thereby
enhanced, recover what he has paid or delivered." The Constitutional
provision that "Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to individuals,
corporations, or associations qualified to acquire or hold lands of the public
domain in the Philippines"24 is an expression of public
policy to conserve lands for the Filipinos. As this Court said in Krivenko:

It is well to note at this
juncture that in the present case we have no choice. We are construing the
Constitution as it is and not as we may desire it to be. Perhaps the effect of
our construction is to preclude aliens admitted freely into the Philippines
from owning sites where they may build their homes. But if this is the solemn
mandate of the Constitution, we will not attempt to compromise it even in the
name of amity or equity . . . .

For all the foregoing, we hold
that under the Constitution aliens may not acquire private or public
agricultural lands, including residential lands, and, accordingly, judgment is
affirmed, without costs.25

That policy would be defeated and its continued violation
sanctioned if, instead of setting the contracts aside and ordering the
restoration of the land to the estate of the deceased Justina Santos, this
Court should apply the general rule of pari delicto. To the extent
that our ruling in this case conflicts with that laid down in Rellosa
v. Gaw Chee Hun26 and subsequent similar cases, the latter
must be considered as pro tanto qualified.

PHILIPPINE BANKING CORPORATION, representing the estate
of JUSTINA SANTOS Y CANON FAUSTINO, deceased vs. LUI SHE in her own behalf and as administratrix of the intestate estate
of Wong Heng, deceased,G.R. No. L-17587, September 12, 1967

“x x x.

Nor is there merit in the claim that as the portion of the
property formerly owned by the sister of Justina Santos was still in the
process of settlement in the probate court at the time it was leased, the lease
is invalid as to such portion. Justina Santos became the owner of the entire
property upon the death of her sister Lorenzo on September 22, 1957 by force of
article 777 of the Civil Code. Hence, when she leased the property on November
15, she did so already as owner thereof. As this Court explained in upholding the sale made by an heir of a
property under judicial administration:

That the land could not ordinarily be levied upon while in custodia
legis does not mean that one of the heirs may not sell the right,
interest or participation which he has or might have in the lands under
administration. The ordinary execution of property in custodia
legis is prohibited in order to avoid interference with the possession
by the court. But the sale made by an heir of his share in an inheritance,
subject to the result of the pending administration, in no wise stands in the
way of such administration.6

PHILIPPINE BANKING CORPORATION, representing the estate of JUSTINA SANTOS Y CANON FAUSTINO, deceased, vs. LUI SHE in her own behalf and as administratrix of the intestate estate of Wong Heng, deceased, G.R. No. L-17587, September 12, 1967

“x x x.

Justina Santos maintained — now reiterated by the Philippine Banking Corporation — that the lease contract (Plff Exh. 3) should have been annulled along with the four other contracts (Plff Exhs. 4-7) because it lacks mutuality; because it included a portion which, at the time, was in custodia legis; because the contract was obtained in violation of the fiduciary relations of the parties; because her consent was obtained through undue influence, fraud and misrepresentation; and because the lease contract, like the rest of the contracts, is absolutely simulated.

Paragraph 5 of the lease contract states that "The lessee may at any time withdraw from this agreement." It is claimed that this stipulation offends article 1308 of the Civil Code which provides that "the contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them."

We have had occasion to delineate the scope and application of article 1308 in the early case of Taylor v. Uy Tieng Piao.1 We said in that case:

Article 1256 [now art. 1308] of the Civil Code in our opinion creates no impediment to the insertion in a contract for personal service of a resolutory condition permitting the cancellation of the contract by one of the parties. Such a stipulation, as can be readily seen, does not make either the validity or the fulfillment of the contract dependent upon the will of the party to whom is conceded the privilege of cancellation; for where the contracting parties have agreed that such option shall exist, the exercise of the option is as much in the fulfillment of the contract as any other act which may have been the subject of agreement. Indeed, the cancellation of a contract in accordance with conditions agreed upon beforehand is fulfillment.2

And so it was held in Melencio v. Dy Tiao Lay 3 that a "provision in a lease contract that the lessee, at any time before he erected any building on the land, might rescind the lease, can hardly be regarded as a violation of article 1256 [now art. 1308] of the Civil Code."

The case of Singson Encarnacion v. Baldomar 4 cannot be cited in support of the claim of want of mutuality, because of a difference in factual setting. In that case, the lessees argued that they could occupy the premises as long as they paid the rent. This is of course untenable, for as this Court said, "If this defense were to be allowed, so long as defendants elected to continue the lease by continuing the payment of the rentals, the owner would never be able to discontinue it; conversely, although the owner should desire the lease to continue the lessees could effectively thwart his purpose if they should prefer to terminate the contract by the simple expedient of stopping payment of the rentals." Here, in contrast, the right of the lessee to continue the lease or to terminate it is so circumscribed by the term of the contract that it cannot be said that the continuance of the lease depends upon his will. At any rate, even if no term had been fixed in the agreement, this case would at most justify the fixing of a period5 but not the annulment of the contract.

Petitioner contends that respondent, being an alien, is
disqualified to own private lands in the Philippines; that respondent was aware
of the constitutional prohibition but circumvented the same; and that
respondent’s purpose for filing an action for separation of property is to
obtain exclusive possession, control and disposition of the Antipolo property.

Respondent claims that he is not praying for transfer of
ownership of the Antipolo property but merely reimbursement; that the funds
paid by him for the said property were in consideration of his marriage to
petitioner; that the funds were given to petitioner in trust; and that equity
demands that respondent should be reimbursed of his personal funds.

The issue for resolution is whether respondent is entitled
to reimbursement of the funds used for the acquisition of the Antipolo
property.

The petition has merit.

Section 7, Article XII of the 1987 Constitution states:

Save in cases of hereditary
succession, no private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or hold lands
of the public domain.

Aliens, whether individuals or corporations, are disqualified
from acquiring lands of the public domain. Hence, they are also disqualified
from acquiring private lands. 9 The primary purpose of the
constitutional provision is the conservation of the national patrimony. In the
case of Krivenko v. Register of Deeds, 10 the Court held:

Under section 1 of Article XIII of
the Constitution, "natural resources, with the exception of public
agricultural land, shall not be alienated," and with respect to public
agricultural lands, their alienation is limited to Filipino citizens. But this
constitutional purpose conserving agricultural resources in the hands of
Filipino citizens may easily be defeated by the Filipino citizens themselves
who may alienate their agricultural lands in favor of aliens. It is partly to
prevent this result that section 5 is included in Article XIII, and it reads as
follows:

"Sec. 5. Save in cases of
hereditary succession, no private agricultural land will be transferred or
assigned except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain in the Philippines."

This constitutional provision
closes the only remaining avenue through which agricultural resources may leak
into aliens’ hands. It would certainly be futile to prohibit the alienation of
public agricultural lands to aliens if, after all, they may be freely so
alienated upon their becoming private agricultural lands in the hands of
Filipino citizens. x x x

x x x x

If the term "private agricultural lands" is to be
construed as not including residential lots or lands not strictly agricultural,
the result would be that "aliens may freely acquire and possess not only
residential lots and houses for themselves but entire subdivisions, and whole
towns and cities," and that "they may validly buy and hold in their
names lands of any area for building homes, factories, industrial plants,
fisheries, hatcheries, schools, health and vacation resorts, markets, golf
courses, playgrounds, airfields, and a host of other uses and purposes that are
not, in appellant’s words, strictly agricultural." (Solicitor General’s Brief,
p. 6.) That this is obnoxious to the conservative spirit of the Constitution is
beyond question.

Respondent was aware of the constitutional prohibition and
expressly admitted his knowledge thereof to this Court.11 He declared that he had the Antipolo
property titled in the name of petitioner because of the said prohibition. 12His attempt at subsequently asserting or
claiming a right on the said property cannot be sustained.

The Court of Appeals erred in holding that an implied trust
was created and resulted by operation of law in view of petitioner’s marriage
to respondent. Save for the exception provided in cases of hereditary
succession, respondent’s disqualification from owning lands in the Philippines
is absolute. Not even an ownership in trust is allowed. Besides, where the
purchase is made in violation of an existing statute and in evasion of its
express provision, no trust can result in favor of the party who is guilty of
the fraud. 13 To hold otherwise would allow circumvention
of the constitutional prohibition.

Invoking the principle that a court is not only a court of
law but also a court of equity, is likewise misplaced. It has been held that
equity as a rule will follow the law and will not permit that to be done indirectly
which, because of public policy, cannot be done directly. 14 He who seeks equity must do equity, and
he who comes into equity must come with clean hands. The latter is a frequently
stated maxim which is also expressed in the principle that he who has done
inequity shall not have equity. It signifies that a litigant may be denied
relief by a court of equity on the ground that his conduct has been inequitable,
unfair and dishonest, or fraudulent, or deceitful as to the controversy in
issue. 15

Thus, in the instant case, respondent cannot seek
reimbursement on the ground of equity where it is clear that he willingly and
knowingly bought the property despite the constitutional prohibition.

Further, the distinction made between transfer of ownership
as opposed to recovery of funds is a futile exercise on respondent’s part. To
allow reimbursement would in effect permit respondent to enjoy the fruits of a
property which he is not allowed to own. Thus, it is likewise proscribed by
law. As expressly held in Cheesman v. Intermediate Appellate Court: 16

Finally, the fundamental law
prohibits the sale to aliens of residential land. Section 14, Article XIV of
the 1973 Constitution ordains that, "Save in cases of hereditary
succession, no private land shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or hold lands
of the public domain." Petitioner Thomas Cheesman was, of course, charged
with knowledge of this prohibition. Thus, assuming that it was his intention
that the lot in question be purchased by him and his wife, he acquired no right
whatever over the property by virtue of that purchase; and in attempting to
acquire a right or interest in land, vicariously and clandestinely, he
knowingly violated the Constitution; the sale as to him was null and void. In
any event, he had and has no capacity or personality to question the subsequent
sale of the same property by his wife on the theory that in so doing he is
merely exercising the prerogative of a husband in respect of conjugal property.
To sustain such a theory would permit indirect controversion of the
constitutional prohibition. If the property were to be declared conjugal, this
would accord to the alien husband a not insubstantial interest and right over
land, as he would then have a decisive vote as to its transfer or disposition.
This is a right that the Constitution does not permit him to have.

As already observed, the finding
that his wife had used her own money to purchase the property cannot, and will
not, at this stage of the proceedings be reviewed and overturned. But even if
it were a fact that said wife had used conjugal funds to make the acquisition,
the considerations just set out to militate, on high constitutional grounds,
against his recovering and holding the property so acquired, or any part
thereof. And whether in such an event, he may recover from his wife any share
of the money used for the purchase or charge her with unauthorized disposition
or expenditure of conjugal funds is not now inquired into; that would be, in
the premises, a purely academic exercise. (Emphasis added)

Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of the 1973 Constitution ordains that, "Save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain." 30Petitioner Thomas Cheesman was, of course, charged with knowledge of this prohibition. Thus, assuming that it was his intention that the lot in question be purchased by him and his wife, he acquired no right whatever over the property by virtue of that purchase; and in attempting to acquire a right or interest in land, vicariously and clandestinely, he knowingly violated the Constitution; the sale as to him was null and void. 31In any event, he had and has no capacity or personality to question the subsequent sale of the same property by his wife on the theory that in so doing he is merely exercising the prerogative of a husband in respect of conjugal property. To sustain such a theory would permit indirect controversion of the constitutional prohibition. If the property were to be declared conjugal, this would accord to the alien husband a not insubstantial interest and right over land, as he would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not permit him to have.

As already observed, the finding that his wife had used her own money to purchase the property cannot, and will not, at this stage of the proceedings be reviewed and overturned. But even if it were a fact that said wife had used conjugal funds to make the acquisition, the considerations just set out militate, on high constitutional grounds, against his recovering and holding the property so acquired or any part thereof. And whether in such an event, he may recover from his wife any share of the money used for the purchase or charge her with unauthorized disposition or expenditure of conjugal funds is not now inquired into; that would be, in the premises, a purely academic exercise. An equally decisive consideration is that Estelita Padilla is a purchaser in good faith, both the Trial Court and the Appellate Court having found that Cheesman's own conduct had led her to believe the property to be exclusive property of the latter's wife, freely disposable by her without his consent or intervention. An innocent buyer for value, she is entitled to the protection of the law in her purchase, particularly as against Cheesman, who would assert rights to the property denied him by both letter and spirit of the Constitution itself.

30 Identical to Sec. 7, Art. XII of the 1987 Constitution, and Sec. 5, ART. XIII of the 1935 Constitution (except that the latter section refers not simply to "private land" but to "private agricultural land".

31 Rellosa v. Gaw Chee Hun, 93 Phil. 827 (1953) applying the pari delicto rule to disallow the Filipino vendor from recovering the land sold to an alien (See also Bautista v. Uy Isabelo, 93 Phil. 843; Talento v. Makiki, 93 Phil. 855; Caoile v. Chiao Peng, 93 Phil. 861; Arambulo v. Cua So, 95 Phil. 749; Dinglasan v. Lee Bun Ting, 99 Phil. 427); and Philippine Banking Corporation v. Lui She, 21 SCRA 52, which declared that the pari delicto rule should not apply where the original parties had already died and had been succeeded by administrators to whom it would have been unjust and to impute guilt, and recovery would enhance the declared public policy of preserving lands for Filipinos.

1.THE
TWO (2) SUBPOENAS RECEIVED BY HEREIN AFFIANT xxx FOR AND IN BEHALF OF HER
HUSBAND xxx. -

1.1.I received from this Honorable Office on February 14, 2016 two (2) Subpoenas, both
dated 10 February 2016, marked as Annex
“1” and Annex “2” hereof, addressed to my husband xxx

(“xxx”, for brevity) at our residence in xxx, xxx Homes, xxx Village,
xxx, xxx City in connection with the two (2) above-captioned consolidated
cases.

1.2.The subpoena for Case No. xxx (“SPO2 xxx vs. xxx and xxx”) was not accompanied by
the Police Report of SPO2 xxx.

1.3.On February
19, 2016 the herein Affiant secured from this Honorable Office certified
true copies of the said Police Record of SPO2 xxx and the relevant documents attached
thereto, the same to form part of my Affidavit in defense of my husband xxx and in my capacity as
intervenor/co-complainant in Case No. xxx.

1.4.It appears that in the said Case No. xxx (“SPO2 xxx vs. xxx and xxx” for reckless imprudence
resulting in damage to property), my husband xxx was made by the SPO2 as the complainant
against xxx (“xxx”, for brevity), per my inquiry with the records staff of this
Honorable Office on February 19, 2016, because my husband xxx was not
required by the Subpoena issued in the said case to submit his/our Counter-Affidavit.

1.5.The Subpoena for Case No. xxx (“xxx vs. xxx”, for reckless imprudence resulting in
damage to property), however, required my husband xxx, as the respondent
therein, to submit his Counter-Affidavit in relation to the Complaint filed in
the said case by xxx arising from the same vehicular incident subject matter of
the related/consolidated Case No. Case
No. xxx (“SPO2 xxx vs. xxx and xxx”).

2.PURPOSES OF THIS AFFIDAVIT AND LEGAL
STANDING OF HEREIN AFFIANT xxx. –

2.1.This Affidavit is being submitted by me to this
Honorable Office in compliance with the abovementioned two (2) Subpoenas issued
by it in relation to the abovecaptioned two (2) consolidated cases.

2.2.The purposes of this Affidavit are to serve as:

(a)My Affidavit as a corroborating witness in support of the claim for damages and the
defenses of my husband xxx in the abovecaptioned two (2) consolidated cases.

(b)My Affidavit as a Intervenor/Co-Complainant in Case No. xxx for the property damage
sustained by my vehicle (xxx, Plate No. xxx), which vehicle was officially registered in my name as the
lawful owner thereof.

(c)My Affidavit as the Attorney-In-Fact or Legal
Representative of my husband xxx for purposes of the litigation of the
abovecaptioned two (2) consolidated cases while he is out of the country by
reason of his work as an Overseas Filipino Worker (OFW).

3.INABILITY
OF xxx (OVERSEAS FILIPINO WORKER) TO APPEAR BEFORE THE OFFICE OF THE CITY
PROSECUTOR OF xxx CITY AT THIS TIME FOR PURPOSES OF THE PRELIMINARY
INVESTIGATION OF THE ABOVECAPTIONED TWO (2) CONSOLIDATED CASES.

SPECIAL POWER OF ATTORNEY EXECUTED BY xxx IN FAVOR OF THE HEREIN AFFIANT
xxx AS HIS ATTORNEY-IN-FACT AND LEGAL REPRESENTATIVE IN CONNECTION WITH THE
LITIGATION OF THE ABOVECAPTIONED TWO (2) CONSOLIDATED CASES.

3.1.For the information of this Honorable Office my
husband xxx left for abroad as an OFW
(seaman) on January 29, 2016.

3.2.I was appointed by my husband xxx as his
Attorney-In-Fact or Legal Representative to act for and in his behalf in
connection with the litigation of the abovecaptioned two (2) consolidated cases
as shown by the SPECIAL POWER OF
ATTORNEY (SPA) he executed on January
21, 2016, a copy of which is attached as Annex “3” hereof.

3.3.The said SPA expressly empowered me to perform
any and all of the following duties and functions:

“x x x.

To file, prosecute and defend my
said problem or case until its finality, including with any other forum, with
power to make counterclaims, avail of discovery procedures, any and all
provisional and extraordinary remedies, and to file the proper action in court;
to appear in any hearings or proceedings or action in any forum, including with
the courts, quasi-judicial bodies and government agencies, and out-of-court,
especially for my said pending case; to attend any hearing, pre- trial hearing
or conference or mediation , with power to make admissions and stipulations of
facts and documents, to submit and/or approve compromise proposals; to attend
subsequent hearings or conferences after the pre- trial or preliminary
conference; to implement and execute any compromise proposals or agreements; to
sue and be sued under any action or proceeding; to sign VERIFICATION AND
CERTIFICATION OF NON- FORUM SHOPPING on any petition/complaint, amended or
supplemental petition/complaint, motion, manifestation, compliance or any
paper, writing or document; to waive any procedure in the Rules of Court or
other rules, including to waive any PLEADING, PRE-TRIAL OR TRIAL PROCEDURE or
any other PROCEDURE in any forum; to sign, seal and execute any affidavit of
whatever kind and nature, or any document, contract, agreement, compromises,
receipts, or any other paper or writing in relation thereto; and to sign, seal
and execute all necessary documents, contracts, agreements, affidavits,
compromises, receipts, petitions, complaints, answers, motions, verifications,
certificates against non-forum shopping and other pleadings, including
amendments and supplements thereto; to cause the signing, sealing, execution of
any complaint, motion, affidavit of whatever kind and nature, or any document,
contract, agreement, compromises, receipts, complaint-affidavit,
counter-affidavit, reply-affidavit, rejoinder-affidavit, letter or any other
paper or writing in relation thereto; to hire and pay lawyer of counsel, to
make payments as are considered acts of strict dominion; to testify in any
forum under the limits allowed by law; to secure witnesses, witnesses’
affidavits and all evidences; all pertaining to all the powers expressly and
impliedly herein granted or those bye necessary implication thereto.

X x x.”

II.MOTION TO
INTERVENE.

4.I
hereby move for leave of this Honorable Office to INTERVENE as a CO-COMPLAINANT
of my husband xxx in Case No. xxx.

4.1.My legal
interest to intervene lies in the fact that I was the REGISTERED OWNER of xxx with PLATE NO. xxx which was being
driven by my husband xxx at the time of the incident subject matter of the two
(2) abovecaptioned consolidated cases (i.e.,
January 8, 2016 at about 7:30 AM at xxx St. [in front of xxx Bldg. and opposite the entry-exit gate of xxx Homes]
inside xxx Village, xxx, xxx City).

4.2.If this motion would be granted, I further move
that this Affidavit be deemed as my Complaint-In-Intervention.

4.3.By analogy, it will be noted that Sec. 1 and Sec. 2, Rule 19 (INTERVENTION),
of the 1997 Rules of Civil Procedure provide:

“SECTION
1. Who may intervene.—Aperson
who has a legal interest in the
matter in litigation, or in the success
of either of the parties, or an interest against both, or is so situated as
to be adversely affected by a distribution or other disposition of property in
the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of
the original parties, and whether or not the intervenor’s rights may be fully
protected in a separate proceeding. (2[a], [b]a, R12).”

“SEC. 2. Time to
intervene.–The
motion to intervene may be filed at any
time before rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and served on the
original parties. (n).”

III.ADOPTION
OF THE INVESTIGATION RECORDS OF THE INVESTIGATOR-ON-CASE SPO2 xxx AND SUBMISSION
OF OTHER RELEVANT DOCUMENTS.

5.For
and in behalf of my husband xxx as his
Attorney-In-Fact and Legal Representative, and in capacity as a corroborating witness for my husband xxx and
as his Co-Complainant in Case No. xxx, I hereby adopt and submit to this
Honorable Office the photocopies of the following investigation records of SPO2
xxx, which were all certified by the records section of this Honorable Office
to be true copies of the originals thereof in its custody, to wit:

(a)Annex “4”. – Certificate of Registration (CR) and current Official Receipt (OR)
issued by the Land Registration Office (LTO) for the subject motor vehicle
of herein Affiant, i.e., xxx with Plate
No. xxx registered in my name.

(b)Annex “5”. - Certificate of Registration (CR) and current Official Receipt (OR)
issued by the Land Registration Office (LTO) for the subject motor vehicle
of xxx, i.e., xxx with Plate No. xxx registered
in the name of herein xxx.

Note:

It appears that the
registration of the vehicle of xxx was already EXPIRED at the time of the subject vehicular incident on January 8, 2016because the date of issuance of its annual LTO Official Receipt (OR)
was April 19, 2013 (4/19/13).

If such is the case, it may be concluded that xxx was in violation of the Land Transportation
and Traffic Code (RA 4146) at the time of the subject vehicular incident.

6.FURTHER,
I hereby submit to this Honorable Office the following additional relevant
documents in support of my statements in this Affidavit and in support of the
claim and defenses of my husband xxx:

(a)Annex “15”,
with sub-markings. – Additional PICTURES
of the two (2) subject vehicles taken at the time of the incident.

Note:

I am submitting to the
Investigating Prosecutor the ORIGINALS of the said pictures (attached to the original
copy of this Affidavit intended for the Investigating Prosecutor) for him to
better appreciate the nature, locations, and details of the respective property
damage/s sustained by the two (2) vehicles during the incident. The extra copies of this Affidavit will
contain only clear colored photocopies of the said pictures to economize on the
photo developing costs.

(b)Annex “16”. - COMPACT DISC (CD) of the subject
incident which was taken by the CCTV camera of xxx Bldg. located at xxx St., xxx, xxx Village. The incident happened in
front of xxx Bldg.

Note:

I personally secured the
said CD from the caretaker (named “xxx”)
of the xxx Bldg. a few days after the date of the subject incident as part
of my continuing investigation and search for further evidence of the incident
in support of the claim and defenses of my husband xxx.

I hereby reserve
the right to secure the Affidavit of the said xxx Bldg. caretaker (“xxx”) or at
the least a notarized Certification as part of the authentication of the
contents of the said CD before the termination of the preliminary investigation
of these two (2) consolidated cases.

For lack of material time,
I cannot at this time secure the said Affidavit or notarized Certification.

Further, because the CD
version of the CCTV video is not very clear because of the opposing morning
sunlight at the time it was taken, and for the convenience of the Investigating
Prosecutor, I am attaching a clearer version thereof in a USB gadget
attached to the copy of this Affidavit intended for the Investigating
Prosecutor, so that he could better analyze the incident. The extra copies of this Affidavit however will contain the aforementioned
CDs.

(c)Annex “17”,
- DEED OF SALE OF MOTOR VEHICLE, dated January 25, 2016, executed by me
(vendor) as the registered owner of the
subject xxx with Plate No. xxx in favor the vendee xxx for the amount of
P360, 000.00.

Note:

The cause abovementioned transaction
was negotiated and finalized between the parties thereto before the occurrence of
the subject incident. The actual execution of the deed of sale was delayed
because of the subject vehicular incident and because of the property damage
that it had caused on my vehicle. The deed of sale was executed only on January
25, 2016 (17 days after the subject January 8, 2016 vehicular incident).

(d)Annex “18”.
- DEMAND AND INVITATION LETTER, dated January 8, 2016 (the date of the
subject incident), by our counsel Atty. Manuel Laserna Jr., addressed to xxx,
which is self-explanatory. Xxx ignored
the said letter.

(h)Annex “22”.
- LETTER
OF EMPLOYMENT of my husband xxx showing period of his overseas employment
contract, i.e., January 29, 2016 up to
August 19, 2016. For this reason, he would be unable to appear during the
preliminary investigation of these consolidated cases. Hence, he executed an
SPA for me, as stated in Annex “3“,
supra.

IV.FACTS OF
THE CASE.

7.Briefly,
the incident may be summarized, thus:

On January 8, 2016 at about 7:30 AM on xxx St., xxx Village, in front of the entry-exit gate of xxx Homes and in front of xxx Bldg. on xxx St., the Security Guard xxx of xxx Homes, stopped a MONTERO
(Plate Number not indicated in the case record or in the Salaysay of the said
security guard) that was traversing westward along xxx St. towards xxx St., in order to allow my husband xxx,
who was driving our family car (xxx, Plate No. xxx) to slowly exit the main entry-exit gate of xxx Homes.

When my husband was already past the middle of xxx St., all of sudden xxx, who was overspeeding, appeared like a lightning and hit theright front fender, bmper, hood, and other frontal parts of our of our
family car.

Xxx was driving along xxx St.
from xxx Lane (east) going to xxx Ave. (west).

Xxx disregarded the MONTERO which dutifully stopped, in obedience to
the security guard of xxx Homes, to give way to my husband xxx.

My husband xxx was slowly exiting the gate of xxx Homes,
as stated in his Salaysay.

Our car sustained damage in
the right front fender, the front bumper, the hood, and other parts thereof, as
stated in the QUOTATION issued by xxx INC. (Annex “12”, supra).

The car of xxx sustained
damage at the left front fender.

Due to the impact, the air
from his left front tire exited and he suffered from a flat /deflated tire in
his left front wheel.

Instead of apologizing, XXX
blamed by husband.

At the Traffic Bureau, when
we were following up the police report, we met XXX, who again did not apologize
but instead insinuated to us that the parties should litigate their claim and
counterclaim.

We were hoping that XXX
would make a compromise offer to us to amicably settle the damage that he had
caused on our case but he did not.

Our lawyer Atty. Laserna also
wrote a letter to XXX inviting him to his law office to explore a possible
compromise but he ignored it (Annex “18”, supra).

V.DISCUSSION.

A.RECKLESS
IMPRUDENCE OF XXX.

8.In
the MALAYANG SINUMPAANG SALAYSAY, dated
January 8, 2016, of my husband XXX (Annex
“6”, supra), which Salaysay was
sworn to by him before Senior Assistant City Prosecutor xxx, which was submitted
by my husband to SPO2 Xxx to form part of the latter’s investigation report to
be filed by said police officer with this Honorable Office for preliminary
investigation Office, and which investigation report is now part of the case
records of these to (2) consolidated cases pending before this Honorable Office,
my husband XXX stated, thus:

9.In the MALAYANG SINUMPAANG SALAYSAY, dated January
8, 2016, ofXXX XXX XXX (Annex “7”, supra) the eye-witnessSecurity Guard of Xxx Homes assigned to the
entry-exit gate of the said village on the date and time of the subject
incident, which Salaysay was sworn to by him before Senior Assistant City Prosecutor, and submitted by him to the SPO2 XXX
to form part of his investigation report to be filed by him with this Honorable
Office for preliminary investigation, and which Salaysay is now part of the
case record of this Honorable Office,
the said affiant-witness Xxx Xxx XXX stated, thus:

10.In my
own MALAYANG SINUMPAANG SALAYSAY, dated
January 8, 2016 (Annex “8”, supra), as the registered owner of the subject Xxx
Xxx, with Plate No. xxx, which Salaysay was sworn to by me before Senior Assistant City Prosecutor xxx,
and which was submitted by me to SPO2 XXX to form part of his investigation
report to be filed by him this Honorable Office for preliminary investigation,
and which Salaysay is now part of the case record of this Honorable Office, I
stated, thus:

This
refers to their family vehicle registered in the name of his Mrs. Xxx Xxx,
described as Xxx Xxx, Plate No. xxx, Metallic Beige.

We
are writing in re: the incident which happened today, January 8, 2016, at about
7:00 AM – 7:30 AM at Xxx Xxx St., in front of XXX Bldg. and in front of the
gate of Xxx Homes, inside XXXXxx Village, XxxXxx City, which resulted in damage
to the vehicle of our said clients.

Based on the evidence of the
incident, the proximate cause thereof is your reckless and negligent manner of
driving your vehicle (Xxx Xxx, Plate No. xxx
when you suddenly took over a Montero vehicle in front of you, which
Montero vehicle was then on stand still having been earlier stopped by the Xxx
Homes guard on duty at that time, to give way to the slow exit of the vehicle
of our said clients from Xxx Homes. Your reckless driving resulted in a
collision of the two vehicles involved.

We request a legal
conference with you and your lawyer to be held on January 13, 2016, Wednesday,
at 3:00 PM at our law office to discuss and explore a possible compromise
agreement between the parties to avoid unnecessary and expensive criminal
and/or civil litigations.

Please
let us know of your response hereto within two (2) days from your receipt
hereof. Beyond the said time, if this request is ignored, we shall take the
proper legal actions against you. Thank you.

This
refers to your Demand Letter, January
25, 2016, which the spouse of our client, Xxx Xxx, thru her mother, Xxx,
received on January 28, 2016, demanding the sum of P88,424.00 in re: the vehicular incident that happened on January 8, 2016 at about 7:00 AM on Xxx Xxx
St., XXXXxx Village, XxxXxx City.

We respectfully DENY the
claim of your client, the same being unfounded, baseless and contrary to the
truth and the evidence, the truth being that the reckless imprudence, lack of
due diligence, and criminal irresponsibility of your client was the proximate
cause of the said vehicular incident which likewise caused damage to the
vehicle of our client in the amount of P96,480.82 (See attached Xxx estimate/quotation,
dated January 8, 2016).

The
said amount of damage shall be proven in due time by our clients before the
Office of the City Prosecutor and the proper Trial Court.

Per
latest inquiry by Mrs. Xxx Xxx, the PNP XxxXxx City Traffic Bureau has
forwarded to the Office of the City Prosecutor the records of the said
vehicular incident for regular preliminary investigation. The case is
reportedly docketed as xxx before the
said Office and will still be raffled to
an investigating prosecutor as of today.

Our
clients are prepared to LITIGATE their claim before the said Office and the
proper Trial Court of XxxXxx City in due time, without prejudice to the right of the contending parties to discuss
and explore a possible Compromise
during the Mediation and the Judicial
Dispute Resolution phases of the said case.

For your information, Xxx Xxx
will fly tomorrow for abroad as an overseas Filipino worker (a seaman in a foreign
cruise liner). His wife, Xxx Xxx (who is the registered owner of the Xxx
vehicle involved in the aforecited vehicular incident), will represent him as
his attorney-in-fact for purposes of the litigation of the aforecited case
before the Office of the City Prosecutor and the proper Trial Court.

Please note that we had
previously send a Letter, dated January
8, 2016, to your client XXX B. XXX, with address of record as per his Driver’s
License at xxx Bldg., xxx Village, xxx Subd., xxx City,
inviting him to a conference at our law office on January 13, 2016 at 3:00 PM
to discuss/explore a Compromise. Your client did not appear during the said
conference.

Thank
you.

X x
x.”

B.RELEVANT LAWS AND JURISPRUDENCE.

13.
Article 365 of the Rev. Penal Code
reads as follows:

"Art. 365. Imprudence and
negligence. — Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer
the penalty of arresto mayor in its maximum period to prision correccional in
its medium period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall be imposed; if
it would have constituted a light felony, the penalty of arresto menor in its
maximum periodical shall be imposed.

"Any
person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor
in its medium and maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period shall be imposed.

"When
the execution of the act covered by this article shall have only resulted in
damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damages to three times such
value, but which shall in no case be less than twenty-five pesos.

"A
fine not exceeding two-hundred pesos and censure shall be imposed upon any
person who, by simple imprudence or negligence, shall cause some wrong which,
if done maliciously, would have constituted a light felony.

"In
the imposition of these penalties, the courts shall exercise their sound
discretion, without regard to the rules prescribed in article sixty-four.

"The provisions contained in this article shall not be applicable:

"1. When the penalty provided for the offense is equal
to or lower than those provided in the first two paragraphs of this article, in
which case the courts shall impose the penalty next lower in degree than that
which should be imposed in the period which they may deem proper to
apply.

"2.
When, by imprudence or negligence and with violations of the Automobile Law,
the death of a person shall be caused, in which case the defendant shall be
punished by prision correccional in its medium and maximum periods.

"Reckless imprudence
consists in voluntarily, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on
the part of the person performing or failing to perform such act, taking into
consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place.

"Simple imprudence
consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest.

"The penalty next higher in degree to those
provided for in this article shall be imposed upon the offender who fails to
lend on the spot to the injured parties such help as may be in his hands to
give."

"Reckless imprudence consists in voluntarily, but without
malice, doing or failing to do an act from which material damage results by
reason of inexcusable lack of
precaution on the part of the person performing or failing to perform
such act, taking into consideration his employment or occupation, degree of intelligence,
physical condition and other circumstances regarding persons, time and place.

"Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest.

15. XXX was overspeeding at the time of
the incident.

The speed limit inside XXXXxx Village is only 30 KPH.

In our own village (xxx)
located inside XXXXxx Village the speed limit, in fact, is even much lower,
i.e., 15 KPH.

The speed limit signages of
the XXXXxx Village Homeowners Association, Inc. [BFRVHAI] are
located/distributed all around the main streets inside the village. (See Annex “21”, supra).

The CCTV video (Annex “16”, supra) of the incident shows that XXX was overspeeding, perhaps at about 40-50 KPH.

Considering that January 8,
2016, a Friday, was a working day, it is fair to assume that at that time (7:00
AM) XXX was in hurry to go to work, hence, the reckless overspeeding and
overtaking.

On the other hand, my
husband XXX, per the same CCTV video, was moving very slowly at about 15 KPH as he was carefully turning left,
after exiting from the gate of Xxx Homes, along Xxx Xxx St. towards xxx St.
(westward).

XXX knew and could not have
missed the fact that the MONTERO car had already stopped or was stationary, in
obedience to the signal of the Xxx Homes Security Guard XXX. XXX should have
likewise stopped to give way to the exiting vehicles from the gate of Xxx
Homes.

At the very least, XXX should have slowed down to 10 KPH to 15 KPH
to insure that there were no outgoing vehicles on his left (i.e., left or front
of the stopped MONTERO) which was a blind side from XXX’s vantage.

XXX did not stop.

Instead, he overtook the
stopped or stationary MONTERO in front of him.

XXX, in an overspeeding
manner, tried to speed away on the right side of the MONTERO, hitting our
family car being driven by my husband XXX at that time.

The PROXIMATE CAUSE of the property damage on our family car was the RECKLESS
IMPRUDENCE of XXX.

16. The analogous case of ROGELIO J. GONZAGA vs. PEOPLE OF THE XXXPINES,G.R. No. 195671, January 21,
2015, is instructive.

“x x x.

Reckless
imprudence, as defined in Article 36540 of the RPC, consists in voluntarily,
but without malice, doing or failing to do an act from which material damage
results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration his
employment or occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.

X x x.

In the present case, the RTC and the CA uniformly found that Rogelio’s
act of driving very fast on
the wrong side of the road was the proximate
cause of the collision, resulting to the death of Dionesio, Sr. and
serious physical injuries to Dionesio, Jr. and Cherry. Notably, the road where the incident occurred was a curve sloping
upwards towards Brgy. Bocboc where the Inguitos were bound and descending
towards the opposite direction where Rogelio was going.Indeed, the very fact of speeding, under
such circumstances, is indicative of imprudent behavior. As a motorist,
Rogelio was bound to exercise ordinary care in such affair by driving at a
reasonable rate of speed commensurate with the conditions encountered, as this
would enable him to keep the vehicle under control and avoid injury to others
using the highway.43Moreover,
it is elementary in traffic school that a driver slows down before negotiating
a curve as it may be reasonably anticipated that another vehicle may appear
from the opposite direction at any moment. Hence, excessive speed,
combined with other circumstances such as the occurrence of the accident on or
near a curve, as in this case, constitutes negligence.44 Consequently, the Court finds that
Rogelio acted recklessly and imprudently in driving at a fast speed on the
wrong side of the road while approaching the curve where the incident happened,
thereby rendering him criminally liable, as well as civilly accountable for the
material damages resulting therefrom. X x x.

X x x.”

17.Sec. 41
of R.A. No. 4136, or the LAND TRANSPORTATION AND TRAFFIC CODE, provides for
the rules on overtaking and passing which apply to this case by analogy.

When a driver’s vantage or line of sight isobstructed, e.g., by a curve or a
stopped/stationary vehicle in front of him, he should not overtake the stopped/stationary vehicle in front of
him, more so in an overspeeding manner.

In this case, XXX overtook
the stopped/stationary MONTERO in front of him, in an overspeeding manner and
without regard as to whether or not there were vehicles on the left or front of
the said MONTERO exiting from Xxx Homes along Xxx Xxx St. that he might hit.

Please note Sec. 41 of RA No. 4136, to wit:

“Section 41. Restrictions on overtaking
and passing.

(a)
The driver of a vehicle shall not drive to the left side of the center line of
a highway in overtaking or passing another vehicle proceeding in the same direction,
unless such left side is clearly visible, and is free of oncoming traffic for a
sufficient distance ahead to permit such overtaking or passing to be made in
safety.

(b)
The driver of a vehicle shall not overtake or pass another vehicle proceeding in
the same direction, when approaching
the crest of a grade, not upon a curve in the highway, where the driver's view
along the highway is obstructed within a distance of five hundred feet
ahead, except on a highway having two or more lanes for movement of traffic in
one direction where the driver of a vehicle may overtake or pass another
vehicle: Provided, That on a highway within a business or residential district,
having two or more lanes for movement of traffic in one direction, the driver
of a vehicle may overtake or pass another vehicle on the right.”

18.Please
note also Sec. 35 of RA No. 4136
(restrictions as to speed).

“Section 35. Restriction as to speed.
-

(a)
Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater
nor less than is reasonable and proper, having due regard for the traffic, the
width of the highway, and of any other condition then and there existing;
and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any
person, nor at a speed greater than will permit him to bring the vehicle to a
stop within the assured clear distance ahead.

(b)
Subject to the provisions of the preceding paragraph, the rate of speed of any
motor vehicle shall not exceed the following:

MAXIMUM ALLOWABLE SPEEDS

Passengers
Cars and Motorcycle

Motor trucks and buses

1.
On open country roads, with no
"blinds corners" not closely bordered by
habitations.

80
km. per hour

50
km. per hour

2.
On "through streets" or boulevards,
clear of traffic, with no " blind corners,"
when so designated.

40
km. per hour

30
km. per hour

3.
On city and municipal streets, with
light traffic, when not designated
"through streets".

30
km. per hour

30
km. per hour

4. Through crowded
streets,
approaching intersections at "blind corners," passing school zones,
passing
other vehicles which are stationery, or
for similar dangerous circumstances.

In the said case, the Supreme Court held that
“before the collision, the Xxx
truck was in its rightful lane, and was even at a stop, having been flagged
down by a security guard of St. Ignatius Village.”

The mishap occurred “when the Mayamy
bus, travelling at a fast speed as shown by the impact of the collision, and
going in the opposite direction as that of the Xxx truck, encroached on the
lane rightfully occupied by said Xxx truck, and caused the latter to spin,
injuring Perez, Anla, Banca, and Repisada, and considerably damaging the Xxx
truck.”

The
relevant doctrinal parts of the aforecited case are cited hereinbelow:

“x x x.

The first question to address, then, is whether or not Mendoza’s
negligence was duly proven. Negligence
is defined as the failure to observe for the protection of the interests of
another person, that degree of care, precaution and vigilance which the circumstances
justly demand, whereby such other person suffers injury.21

As found by the RTC, and affirmed by the CA, Mendoza was negligent in
driving the subject Mayamy bus, as demonstrated by the fact that, at the time
of the collision, the bus intruded on the lane intended for the Xxx truck.
Having encroached on the opposite lane, Mendoza was clearly in violation of
traffic laws. Article2185 of the Civil
Code provides that unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was violating
any traffic regulation. In the case at bar, Mendoza’s violation of
traffic laws was the proximate cause of the harm.

Proximate cause is defined as that cause,
which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not
have occurred. And more comprehensively, the proximate legal cause is that
acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate predecessor, the final
event in the chain immediately effecting the injury as a natural and probable
result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom.22

The evidence on record shows
that before the collision, the Xxx truck was in its rightful lane, and was even
at a stop, having been flagged down by a security guard of St. Ignatius
Village.23 The mishap occurred when the Mayamy
bus, travelling at a fast speed as shown by the impact of the collision, and
going in the opposite direction as that of the Xxx truck, encroached on the
lane rightfully occupied by said Xxx truck, and caused the latter to spin,
injuring Perez, Anla, Banca, and Repisada, and considerably damaging the Xxx
truck.

X x x.”

20.In the case of
LARRY V.
CAMINOS, JR. vs.
PEOPLE OF THE XXXPINES,G.R. No. 147437, May 8, 2009, the Supreme Court discussed the standard of
care or diligence that a driver must observe, that is, “the measure of a motorist’s duty is such care as is, under the facts and
circumstances of the particular case, commensurate with the dangers which are
to be anticipated”.

“x x x.

All told, it must be needlessly emphasized that the measure of a
motorist’s duty is such care as is, under the facts and circumstances of the
particular case, commensurate with the dangers which are to be anticipated and
the injuries which are likely to result from the use of the vehicle, and in
proportion to or commensurate with the peculiar risk attendant on the
circumstances and conditions in the particular case,81 the driver being under the duty to know
and to take into consideration those circumstances and factors affecting the
safe operation of the vehicle which would be open to ordinary observation.82

X
x x.”

21. In
the analogous case of MARIKINA
AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO vs. PEOPLE
OF THE XXXPINES and ERLINDA V. VALDELLON, G.R. No. 152040, March 31, 2006, where the issues were the illegal
overtaking and overspeeding of the guilty driver, the Supreme Court cited Art. 2185 of the Civil Code
which provides that "unless there
is proof to the contrary, it is presumed that a person driving a motor vehicle
has been negligent, if at the time of mishap, he was violating any traffic
regulation." In the aforecited case, “by his own admission, petitioner
Suelto violated the Land

Transportation
and Traffic Code when he suddenly swerved the bus to the right, thereby causing
damage to the property of private respondent.”

The above provision applies to XXX who was guilty of overspeeding, reckless overtaking on the
right side of a stopped/stationary vehicle (Montero), and using an apparently
expired LTO OR (see Annex “5”,
supra).

In the aforecited case the Supreme Court held, thus:

“x x x.

On the first issue, we find and so resolve that respondent People of the
Xxxpines was able to prove beyond reasonable doubt that petitioner Suelto swerved the bus to the right with
recklessness, thereby causing damage to the terrace of private
respondent’s apartment. Xxx.

Suelto narrated that he suddenly
swerved the bus to the right of the road causing it to hit the column
of the terrace of private respondent. X x x.

X x x.

Under Section 37 of Republic Act
No. 4136, as amended, otherwise known as the Land Transportation and Traffic
Code, motorists are mandated to drive and operate vehicles on the right
side of the road or highway:

SEC. 37. Driving
on right side of highway. – Unless a
different course of action is required in the interest of the safety and the
security of life, person or property, or because of unreasonable difficulty of
operation in compliance herewith, every person operating a motor vehicle or an
animal-drawn vehicle on a highway shall pass to the right when meeting persons
or vehicles coming toward him, and to the left when overtaking persons or
vehicles going the same direction, and when turning to the left in going from
one highway to another, every vehicle shall be conducted to the right of the
center of the intersection of the highway.

Section 35 of the law provides, thus:

Sec. 35.
Restriction as to speed.—(a) Any person
driving a motor vehicle on a highway shall
drive the same at a careful and prudent speed, not greater nor less than is
reasonable and proper, having due regard for the traffic, the width of the
highway, and of any other condition then and there existing; and no
person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any
person, nor at a speed greater than will permit him to bring the
vehicle to a stop within the assured clear distance ahead (emphasis supplied).

In
relation thereto, Article 2185 of the New Civil Code provides that "unless
there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent, if at the time of mishap, he was violating any
traffic regulation." By his own admission, petitioner Suelto violated the
Land Transportation and Traffic Code when he suddenly swerved the bus to the
right, thereby causing damage to the property of private respondent.

X x x.

As already maintained and concluded, the severe damages sustained could
not have resulted had the accused acted as a reasonable and prudent man would.
The accused was not diligent as he claims to be. What is more probable is that
the accused had to swerve to the right and hit the commercial apartment of the
plaintiff because he could not make a full stop as he was driving too fast in a
usually crowded street.24

X x x.”

22.At this juncture, it is instructive to cite the
relevant provisions of the Civil Code on human
relations and quasi-delict.

Human Relations.

Article
19. Every
person must, in the exercise of his rights and in the performance of his
duties, act with justice, give
everyone his due, and observe honesty and good faith.

Article
21. Any
person who wilfully causes loss or injury to another in manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.

Quasi-delicts

Article
2176. Whoever
by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict
and is governed by the provisions of this Chapter. (1902a)

Article
2177. Responsibility
for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant.(n)

Article
2179. When
the plaintiff's own negligence was the immediate and proximate cause of his
injury, he cannot recover damages. But if his negligence was only contributory, the immediate
and proximate cause of the injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (n)

Article
2184. In
motor vehicle mishaps, the owner is solidarily liable with his driver, if the
former, who was in the vehicle, could have, by the use of the due diligence,
prevented the misfortune. It is
disputably presumed that a driver was negligent, if he had been found guilty of
reckless driving or violating traffic regulations at least twice within the
next preceding two months.

If
the owner was not in the motor vehicle, the provisions of article 2180 are
applicable. (n)

Article
2185. Unless
there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been negligent if at the
time of the mishap, he was violating any traffic regulation. (n)

VI.RELIEF.

WHEREFORE, in the interest of justice, it is respectfully prayed
that XXX B. XXX be INDICTED for the
felony of RECKLESS IMPRUDENCE RESULTING IN DAMAGE TO PROPERTY.

FURTHER, the undersigned
respectfully prays that her aforementioned MOTION
FOR INTERVENTION, as a CO-COMPLAINANT of her husband XXX in re: Case No. xxx, supra, be GRANTED and
that this Affidavit of the undersigned Affiant by deemed as her Complaint-In-Intervention.

FURTHERMORE, it is
respectfully prayed that the aforementioned SPECIAL POWER OF ATTORNEY executed by XXX XXX y AMBAGAN in favor of
the undersigned Affiant as his Attorney-In-Fact and Legal Representative for
purposes of the litigation of the abovecaptioned two (2) consolidated cases be duly NOTED.

FINALLY, the undersigned
respectfully prays for such and other reliefs as may be deemed just and
equitable in the premises.